What's in a name? Reflections on timing, naming, and constitution-making.

• Author: Jackson, Vicki C.

1. INTRODUCTION: THE PARADOXES OF CONSTITUTION-MAKING

   There is a paradox, well described by Jon Elster, (1) that the crisis conditions that often lead to constitution-making are incompatible with the kind of deliberation thought necessary for the creation of a constitution consistent enough with the needs of its polity to be successful. "Post-conflict" situations are likely to involve crises that motivate constitution-making, but are also likely to create conditions in which the probability of creating a lasting constitution at one blow is low.

   This essay explores the consequences of this observation, suggesting that those committed to constitutionalism need an expanded repertoire of approaches in post-conflict societies (including contingent, incrementalist, revisable or interim approaches). Moving directly to traditional, comprehensive forms of constitution-making (2) in some circumstances may be antithetical to promoting the conditions necessary for constitutionalism--including trust in legal institutions. (3) The increasing range and diversity of constitution-making approaches is humbling, or should be, especially for those seeking to influence other countries' decisions of when and how to engage in constitution-making. Constitutions are a foundation for the rule of law, insofar as they specify the rules by which law is made, interpreted, applied, enforced, and changed; successful polities need a constitution (written or not) to allocate these responsibilities. Yet making a written constitution may at times be antithetical to the constitutionalism it seeks to promote. And calling the process "constitutional" may at times be antithetical to producing the kind of agreement that may lead to a more permanent, or legitimate, state of constitutionalism.

   A second and related paradox of relevance to constitution-making in post-conflict societies arises from the distinctive features of constitutions. In most settings, constitutions are understood to be legal instruments that are foundational in terms of defining and allocating legitimate governmental authority, hierarchically supreme over other sources of law, (4) and entrenched--meaning that they are more difficult to change than other forms of law and intended to be more enduring. In the kinds of crises generated by conflicts and their aftermaths, the entrenched, foundational, and supreme character of the constitution as a matter of legal hierarchy can help to mobilize attitudes of public-spiritedness and elicit extraordinary efforts to produce the best possible document. Bruce Ackerman famously refers to "constitutional moments" of high popular mobilization and enhanced deliberation, beyond the type characteristic of "ordinary" politics. (5) Moments of dramatic regime change, as occurred in Iraq and Afghanistan, may enhance the conditions for this version of constitution-making, as the very rupture creates a "veil of ignorance" regarding future politics and enhances the capacity for longer term deliberation. (6) The raised stakes of constitution-making may not only move contending parties to focus on the constitutional project, but also encourage elites--who, having invested in the project of constitution-drafting, may have incentives to persuade those whose assent is required to ratify the document and then, as actors in the political system, to try to make the constitution work. (7)

   However, a constitution's entrenched character, together with its foundational and hierarchically supreme status, may also create disincentives to cooperative or public-spirited drafting behavior. Existing powerful parties fearing the loss of power through an entrenched constitution may, rationally, be obstructive; they may refuse to participate, block thoughtful compromises, or otherwise seek to derail the project. (8) In societies with existing cleavages based on ascriptive identity with a clear majority in one group, minority groups may be reluctant, even in moments of regime change, to bargain over a document that is likely to entrench majority power; where the rule of law is weak or legal institutions unsettled, minorities may not be willing to rely on a legal instrument's statement of rights. Minority groups may be especially reluctant in fluid situations in which they believe that waiting until later will allow them greater influence--for example, due to immigration patterns, birth rates or other demographic trends, or to the possible (hoped for) intervention of other external powers. The stakes of constitution-making are high, then, and can work to enhance constitution-making efforts, to destroy them, or to invite stalemate.

   To these paradoxes, avowedly "transitional" constitutions may seem to offer important solutions. Transitional constitutional documents (as the Northern Ireland agreements have been described and as the Interim South African Constitution was proclaimed), or more incremental constitutional processes (as in Poland or Hungary), may decide only some, not all, of the matters that full-fledged traditional constitutions typically address. (9) Transitional constitutions may be at once entrenched and impermanent; their adoption may be via a process that lacks democratic legitimacy but proclaims authority to make binding decisions, either briefly, or for all future constitution-making. The stakes may be at once high, to the extent that interim constitutions claim the authority to prescribe the processes by which future agreements are made (or, in the case of South Africa, to also specify principles to which future constitution-making must adhere) and (relatively) low, insofar as they contemplate their own supersession in the near future.

   Some caveats and assumptions are in order. First, I posit that both constitutions and constitution-making have multiple purposes, and that these are not necessarily the same. Constitutions as legal documents serve many functions, some of which may be in tension with each other; likewise, constitution-making serves many functions, not necessarily congruent with those of the constitution itself, and potentially in tension with it. Constitutions may be "constitutive" of their polity; they may express and symbolize national identity; and they may serve as a symbol of national sovereignty and membership in a community of nations. (10) But they also either describe existing allocations of government or empower and create organs of government to which different powers are allocated. Importantly, at least in the western tradition, they also limit government power and protect individual (and sometimes, group) rights. Constitutions may also embody important compromises among important parts of society--compromises that represent agreements that are the foundation of peaceful coexistence within one polity. Finally, constitution-making, though intended to produce written constitutions, may serve other (and more immediate) purposes unrelated to--and even at war with--constitutions functioning as fundamental law. (11)

   Second, I assume the normative value of constitutionalism. Constitutionalism entails a sufficiently shared willingness to use law rather than force to resolve disagreements; to limit government power and to protect human rights through law and defined processes; to provide a reasonable degree of predictability and stability of law that people may rely on as they structure their lives; and to maintain a government that is legitimate and effective enough to maintain order, promote the public good, and control private violence and exploitation. (12) The goal of constitution-making should be understood, not as producing a written constitution, but as promoting constitutionalism. (13)

   In this essay, I focus on the processes of constitution-making, more than on substantive design choices or provisions. (14) But even with so narrow a focus, transitional constitution-making processes offer the opportunity to reflect on conventional understandings of the relationships between constitutions and constitutionalism in several respects. First, constitutional desiderata generally include the goal of endurance across long periods of time; transitional constitutions need not embrace this aspiration. They thus cast into new relief the relationship between traditional, entrenched constitutions and constitutionalism; yet their efforts to bind future constitutional decisions reflect a constitutional normativity, perhaps transnational in character, not necessarily grounded in positive decisions of particular polities.

   Second, to the extent that transitional constitutions are being used as instruments of peacemaking and as efforts to reconstitute or transform their societies, such usages may challenge the idea of constitutions as embodying a fixed or particular identity. They offer the possibility of a new genre of constitution-like instruments whose goal is not to entrench but to disentrench and to provide ongoing opportunities for "unsettlement" of power relations. (15) Indeed, transitional constitutions problematize the very name of the instrument. Constitutions have historically been multi-purpose instruments, in part concerned with the need to provide for the basic rules of governance (including the selection of members of the government and its decision-making processes) on an ongoing basis, in part a link between past and future, in part an assertion of particular identities, and in part a proclamation of a state's status in the world. Resistance to naming an instrument as a "constitution" reflects the complex interaction of these elements in the minds of the participants to constitution-like processes.

   Third, dominant U.S. conceptions of a constitution see it as the product of a discrete founding moment, created through a process distinct from ordinary lawmaking but steeped in popular decision making; (16) transitional constitutions suggest there is more variation in the timing and processes that give rise to permanent...